2. A motion for summary judgment should be
granted only when it is clear that there is no genuine issue of fact to be
tried and inquiry concerning the facts is not desirable to clarify the application
of the law. Syl. Pt. 3, Aetna Casualty & Sur. Co. v. Federal
Ins. Co. of New York, 148 W. Va. 160, 133 S.E.2d 770 (1963).

3. Summary judgment is appropriate if, from
the totality of the evidence presented, the record could not lead a rational
trier of fact to find for the nonmoving party, such as where the nonmoving
party has failed to make a sufficient showing on an essential element of
the case that it has the burden to prove. Syl. Pt. 2, Williams v.
Precision Coil, Inc., 194 W. Va. 52, 459 S.E.2d 329 (1995).

4. 'Proximate cause' must be understood to
be that cause which in actual sequence, unbroken by any independent cause,
produced the wrong complained of, without which the wrong would not have occurred. Syl. Pt. 3, Webb v. Sessler,
135 W. Va. 341, 63 S.E.2d 65 (1950).

6. 'A party in a tort action is not required
to prove that the negligence of one sought to be charged with an injury was
the sole proximate cause of an injury. Divita v. Atlantic Trucking Co.,
129 W. Va. 267, 40 S.E.2d 324 (1946), is overruled to the extent it states
a contrary rule.' Syllabus Point 2, Everly v. Columbia Gas of West Virginia,
Inc., 171 W. Va. 534, 301 S.E.2d 165 (1982). Syl. Pt. 2, Mays
v. Chang, 213 W. Va. 220, 579 S.E.2d 561 (2003)

7. 'Questions of negligence, due care, proximate
cause and concurrent negligence present issues of fact for jury determination
when the evidence pertaining to such issues is conflicting or where the facts,
even though undisputed, are such that reasonable men may draw different conclusions
from them.' Syllabus Point 5, Hatten v. Mason Realty Co., 148 W. Va. 380, 135 S.E.2d 236 (1964). Syl. Pt. 3, Mays
v. Chang, 213 W. Va. 220, 579 S.E.2d 561 (2003).

Per Curiam:

This is an appeal by Donald and Adelaide
Stewart (hereinafter Appellants) from a February 4, 2003, order
of the Circuit Court of Cabell County granting summary judgment to Dr. Jeffrey
George and St. Mary's Hospital (hereinafter Appellees). In the
underlying medical malpractice action, the Appellants contend that the Appellees
failed to properly diagnose and treat Appellant Donald Stewart and that such
negligence proximately caused damages to the Appellants. The lower court
granted summary judgment to the Appellees based upon the alleged absence
of expert witness opinion that any deviation from the standard of care actually
caused the medical problems suffered by Appellant Mr. Stewart. On
appeal, the Appellants contend that genuine issues of material fact exist
precluding summary judgment. Upon thorough review of the briefs, record,
arguments of counsel, and applicable precedent, we reverse the summary judgment
granted by the lower court and remand for further proceedings.

I. Factual and Procedural History

On March 6, 1998, Appellant Donald
Stewart underwent heart bypass surgery at St. Mary's Hospital. The surgery (See
footnote 1) was performed by Appellee Dr. Jeffrey George.
The parties agree that the surgery itself was uneventful and that no negligence
occurred during the performance of the surgery. However, subsequent to the
surgery, Mr. Stewart suffered a substantial infection and required additional
treatment. Mr. Stewart was ultimately transferred to Johns Hopkins Hospital
in Baltimore, Maryland, where his condition was properly diagnosed and mitral
valve repair surgery was also performed. The Appellants filed a medical
malpractice action on March 17, 2000, asserting that the Appellees' failure
to diagnose and properly treat Mr. Stewarts' hyperglycemia, (See
footnote 2) a condition which rendered him susceptible
to infection, caused the development of the post-operative infection and
required further extensive medical treatment.

On February 4, 2003, the lower court granted summary
judgment to the Appellees, finding no genuine issue of material fact regarding
causation. The lower court reviewed the deposition testimony of the Appellants'
expert witness, Dr. Thomas O'Grady, and concluded that the testimony of Dr.
O'Grady did not establish that any failure to properly treat or diagnose
Mr. Stewart's condition actually caused the infection (See
footnote 3) or other damages.

Finding that the necessary link between the alleged injury and any deviation
from the standard of care was absent, the lower court granted summary judgment
to the Appellees.

II. Standard of Review

The standard of review for summary
judgment granted by the lower court has been established as follows in syllabus
point one of Mountain Lodge Association v. Crum & Forster Indemnity
Co., 210 W. Va. 536, 558 S.E.2d 336 (2001): 'A circuit court's entry
of summary judgment is reviewed de novo.' Syl. Pt. 1, Painter v.
Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994). In syllabus point three
of Aetna Casualty & Surety Co. v. Federal Insurance Company of New York,
148 W. Va. 160, 133 S.E.2d 770 (1963), this Court explained: A
motion for summary judgment should be granted only when it is clear that there
is no genuine issue of fact to be tried and inquiry concerning the facts is
not desirable to clarify the application of the law. Further, in syllabus
point two of Williams v. Precision Coil, Inc., 194 W. Va. 52, 459 S.E.2d
329 (1995), this Court stated: Summary judgment is appropriate if, from
the totality of the evidence presented, the record could not lead a rational
trier of fact to find for the nonmoving party, such as where the nonmoving
party has failed to make a sufficient showing on an essential element
of the case that it has the burden to prove. As required of the lower
court, this Court must also draw any permissible inference from the underlying facts in the light most favorable to the
party opposing the motion. Painter, 192 W. Va. at 192, 451 S.E.2d
at 758.

III. Discussion

West Virginia Code § 55-7B-3
(1986) (Repl. Vol. 2000) provides that a plaintiff in a medical malpractice
action must prove that a health care provider deviated from the applicable
standard of care and that this deviation was the proximate cause of injury
to the plaintiff. Specifically, the statute (See
footnote 4) provides as follows:

The following are necessary elements
of proof that an injury or death resulted from the failure of a health care provider
to follow the accepted standard of care:

(a) The health care provider
failed to exercise that degree of care, skill and learning required or expected
of a reasonable, prudent health care provider in the profession or class to which
the health care provider belongs acting in the same or similar circumstances;
and

(B) Such failure was a proximate
cause of the injury or death.

The Appellants in the case sub judice contend
that the lower court erred by finding that there was no genuine issue of
material fact as to whether the Appellees' negligence caused injury to the Appellants. The Appellants argue that the
failure to manage the hyperglycemia and diabetes contributed to the Appellant's
development of the post- operative infection and necessitated the mitral
valve repair ultimately performed at Johns Hopkins. The Appellants further
maintain that Dr. O'Grady's expert opinion testimony clearly establishes
issues of fact regarding whether the Appellees' failure to properly manage
the hyperglycemia caused the infection, as well as whether failure to properly
diagnose and treat the Appellant's post-operative infection and mitral valve
leakage caused additional damages.

In addressing such causation issues, this Court has consistently
held that '[p]roximate cause' must be understood to be that cause which
in actual sequence, unbroken by any independent cause, produced the wrong complained
of, without which the wrong would not have occurred. Syl. Pt. 3, Webb
v. Sessler, 135 W. Va. 341, 63 S.E.2d 65 (1950).

In Mays v. Chang, 213 W. Va. 220, 579 S.E.2d 561 (2003), a medical
malpractice action, this Court held that because reasonable jurors could
draw differing conclusions from blood test evidence, the trial court had
committed reversible error by excluding evidence regarding whether the physician
had a duty of care to administer blood tests to the patient. (See
footnote 5) The lower court had ruled that the appellant could not establish a causal connection
between the appellee's failure to give Mr. Mays a CBC or hemoglobin a/lc
test and his death due to colorectal cancer. 213 W. Va. at 224, 579
S.E.2d at 565. In syllabus point one of Mays, this Court explained
that '[t]he proximate cause of an injury is the last negligent
act contributing to the injury and without which the injury would not have
occurred.' Syllabus Point 5, Hartley v. Crede, 140 W.Va. 133, 82 S.E.2d
672 (1954), overruled on other grounds, State v. Kopa, 173 W. Va.
43, 311 S.E.2d 412 (1983).

This Court clarified in Mays that
a plaintiff, while bearing the burden of proof . . . to show that a
defendant's breach of a particular duty of care was a proximate cause
of the plaintiff's injury, is not required to demonstrate that such
breach was the sole proximate cause of the injury. 213 W. Va. at 224,
579 S.E.2d at 565. In syllabus point two of Mays, this Court
explained as follows:

A party in a tort action
is not required to prove that the negligence of one sought to be charged with
an injury was the sole proximate cause of an injury. Divita v. Atlantic Trucking
Co., 129 W. Va. 267, 40 S.E.2d 324 (1946), is overruled to the extent it
states a contrary rule. Syllabus Point 2, Everly v. Columbia Gas of
West Virginia, Inc., 171 W. Va. 534, 301 S.E.2d 165 (1982).

In addressing questions of causation, this Court
has been careful to defer to the judgment of a jury where different conclusions
may be drawn from the presented facts, noting that questions of proximate cause are often fact-based issues
reserved for jury resolution. Mays, 213 W. Va. at 224, 579 S.E.2d
at 565. In syllabus point three of Mays, this Court stated:

Questions of negligence,
due care, proximate cause and concurrent negligence present issues of fact for
jury determination when the evidence pertaining to such issues is conflicting
or where the facts, even though undisputed, are such that reasonable men may
draw different conclusions from them. Syllabus Point 5, Hatten v. Mason
Realty Co., 148 W.Va. 380, 135 S.E.2d 236 (1964).

See also Syl. Pt. 2, Evans v. Farmer, 148 W. Va. 142,
133 S.E.2d 710 (1963) (The questions of negligence, contributory negligence,
proximate cause, intervening cause and concurrent negligence are questions
of fact for the jury where the evidence is conflicting or when the facts,
though undisputed, are such that reasonable men draw different conclusions
from them).

Subsequent to its proximate cause analysis, the Mays Court
concluded as follows:

In the instant case, we believe
that a reasonable jury could conclude from the appellant's evidence that the
appellee had a duty of care to regularly perform CBC or hemoglobin a/lc tests
on Mr. Mays, and that the appellee breached that duty. A jury could further have
concluded that the breach of that duty was a proximate cause of the harm suffered
by Mr. Mays _ the harm being the lost chance of early detection and treatment
of the colorectal cancer. In other words, a jury could conclude that the appellee's
allegedly negligent inactions contributed to Mr. Mays' lost chance of early detection
and treatment, and conclude that if the appellee had complied with the standard of care, the
harm to Mr. Mays would not have occurred. Because we believe reasonable jurors
could draw different conclusions from the evidence proffered by the appellant,
we find that the circuit court erred in excluding the appellant's blood test
evidence.

213 W. Va. at 224-25, 579 S.E.2d at 565-66 (footnote omitted).

Upon thorough review of Dr. O'Grady's deposition
testimony in the case sub judice, evaluated in a light most favorable to
the Appellants, we find that there is sufficient evidence to potentially
create a dispute in the minds of reasonable jurors regarding whether the
Appellees' deviations from the applicable standards caused injury to the
Appellants. Dr. O'Grady opined that Mr. Stewart was an undiagnosed
diabetic when he first arrived at St. Mary's in February of the year '98,
and that was not pursued. Glucose tolerance tests and hemoglobin serum
tests were not performed, according to Dr. O'Grady's review of Mr. Stewart's
medical records. Dr. O'Grady specified that the failure [to manage
hyperglycemia] contributed to the development of his infection. . . . Because hyperglycemia
is a risk factor for infection in cardiac surgery, Dr. O'Grady stated
that it has to be diagnosed definitively and the sugars brought down
into acceptable ranges. He further stated that my opinion is
that the failure to diagnose and treat the hyperglycemia allowed a risk factor
to be added to his other risk factors, and that contributed to the development
of the infection.

The Appellees emphasize that Dr. O'Grady also observed
that he could not identify the precise cause of the infection and that other
factors could not be excluded as contributing causes. As explained above, however,
the possibility that other causes contributed to the ultimate injury does not
warrant a summary judgment in favor of the Appellees. This Court has consistently
observed that a plaintiff is not required to prove that the negligence
in question was the sole proximate cause of an injury. The presence of
the additional risk factors, based upon Mr. Stewart's physical condition and
medical history, actually increased the need for proper diagnosis and management
of the hyperglycemia, according to Dr. O'Grady. He stated: I think the
presence of those risk factors makes the management of hyperglycemia even more
compelling. That, to me, would be a further indication to bring in an endocrinologist
to get this sugar problem under control.

This Court has also consistently recognized that
questions of proximate cause are often fact-based issues best resolved
by a jury. The uncertainties implicit in this medical record are
prime territories for jury determination. Summary judgment in this situation
was inappropriate. We find that a reasonable jury could conclude from the
Appellants' evidence that the Appellees breached a duty of care to regarding
diagnosis and treatment of Mr. Stewart's hyperglycemia. A jury could further
conclude that the breach of that duty was a proximate cause of the harm suffered
by Mr. Stewart. A jury could deduce that the Appellees' allegedly negligent
inactions contributed to Mr. Stewart's injuries. Mays, 213 W. Va. at 225, 579 S.E.2d at 566. Based upon the foregoing, we find that
the lower court erred in granting summary judgment to the Appellees.

Prior to surgery, it was determined
that Mr. Stewart suffered from an occluded artery and that cardiac bypass
surgery should be performed to restore proper blood flow and improve cardiac function.
Footnote: 2

Hyperglycemia
is the condition that occurs when blood glucose levels rise and remain
elevated.
Footnote: 3

According to Dr. O'Grady, Mr.
Stewart suffered a deep sternal infection which required incision,
drainage, debridement, and ultimately myocutaneous flaps in order to cover
the defect. During hospitalization, Mr. Stewart experienced congestive
heart failure and required dialysis due to acute renal failure. He also required
a mechanically assisted ventilation machine and a tracheotomy.
Footnote: 4

An additional section added to
this statute in 2003, addressing the issue of a loss of chance theory
forwarded by a plaintiff, has no relevance to this cause of action and
is applicable to causes of action alleging medical professional liability
which were filed on or after July 1, 2003.
Footnote: 5

This Court explained: During
the trial, the circuit court completely excluded the appellant's evidence
regarding whether the standard of care imposed upon appellee Dr. Chang
a duty to perform blood tests, tests that might have shown Mr. Mays was
anemic as a result of his colorectal cancer. 213 W. Va. at 223, 579
S.E.2d at 564.